Final Authorization of State Hazardous Waste Management Program; Revisions and Corrections: Rhode Island

Rhode Island: Final Authorization of State Hazardous Waste Management Program; Revisions and Corrections

Supplementary Information

I. Authorization of Revisions to Rhode Island's Hazardous Waste Program

A. Why are revisions to State programs necessary?

States that have received final authorization from the EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask the EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to the EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 268, 270, 273, and 279.

New Federal requirements and prohibitions imposed by Federal regulations that the EPA promulgates pursuant to the Hazardous and Solid Waste Amendments of 1984 (HSWA) take effect in authorized States at the same time that they take effect in unauthorized States. Thus, the EPA will implement those requirements and prohibitions in Rhode Island, including the issuance of new permits implementing those requirements, until the State is granted authorization to do so.

B. What decisions has the EPA made in this final action?

On September 12, 2023, Rhode Island submitted a complete program revision application seeking authorization of revisions to its hazardous waste program. The EPA concludes that Rhode Island's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA, as set forth in RCRA section 3006(b), 42 U.S.C. 6926(b), and 40 CFR part 271. Therefore, the EPA grants final authorization to Rhode Island to operate its hazardous waste program with the revisions described in its authorization application, and as listed below in section G of this document.

The Rhode Island Department of Environmental Management (RI DEM) has responsibility for permitting treatment, storage, and disposal facilities within its borders and for carrying out the aspects of the RCRA program described in its application, subject to the limitations of HSWA, as discussed above.

C. What is the effect of this authorization decision?

If the State of Rhode Island is authorized for these changes, a facility in Rhode Island subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. Additionally, such facilities will have to comply with any applicable Federal requirements such as, for example, HSWA regulations issued by the EPA for which the State has not received authorization. The State of Rhode Island will continue to have primary enforcement authority and responsibility for its State hazardous waste program. The EPA would maintain its authorities under RCRA sections 3007, 3008, 3013, and 7003, including its authority to:

• Conduct inspections and require monitoring, tests, analyses or reports;
• Enforce RCRA requirements, including authorized State program requirements, and suspend or revoke permits; and
• Take enforcement actions regardless of whether the State has taken its own actions.

This action to approve these provisions will not impose additional requirements on the regulated community because the regulations for which the State of Rhode Island is requesting authorization are already effective under State law and are not changed by the act of authorization.

D. Why is the EPA using a final action?

The EPA is publishing this action without prior proposal because the EPA views this as a noncontroversial action and anticipates no adverse comment. However, in the "Proposed Rules" section of this Federal Register , we are publishing a separate document that will serve as the proposed action allowing the public an opportunity to comment. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this action, see the ADDRESSES section of this document.

E. What happens if the EPA receives comments opposing this action?

If the EPA receives comments that oppose this authorization, we will publish a timely withdrawal in the Federal Register informing the public that this final action will not take effect. We will address all public comments in a later Federal Register . You will not have another opportunity to comment. If you want to comment on this action, you must do so at this time.

F. What has Rhode Island previously been authorized for?

Rhode Island initially received final Authorization on January 30, 1986, effective January 31, 1986 (51 FR 3780) to implement its base hazardous waste management program. The EPA granted authorization for revisions to Rhode Island's regulatory program on the following dates: March 12, 1990, effective March 26, 1990 (55 FR 9128); March 6, 1992, effective May 5, 1992 (57 FR 8089); October 2, 1992, effective December 1, 1992 (57 FR 45574); August 9, 2002, effective October 8, 2002 (67 FR 51765); December 11, 2007, effective February 11, 2008 (72 FR 70229); and July 26, 2010, effective September 24, 2010 (75 FR 43409). Additionally, on July 26, 2010 (75 FR 43478), the EPA granted Rhode Island final authorization to operate its hazardous waste program with the changes relating to the Zinc Fertilizer Rule and Burden Reduction Initiative which became effective on September 24, 2010 (75 FR 57188).

G. What changes is the EPA authorizing with this action?

On June 25, 2024, Rhode Island submitted a final complete program revision application, seeking authorization of additional revisions to its program in accordance with 40 CFR 271.21. We now make a final decision, subject to receipt of written comments that oppose this action, that Rhode Island's hazardous waste program satisfies all of the requirements necessary to qualify for final authorization. The RIDEM revisions consist of regulations which specifically govern Federal hazardous waste revisions promulgated between July 1, 2008, through June 30, 2013 (RCRA Clusters XIX through XXII), and the Federal final rule published July 31, 2013 (78 FR 46448, effective January 31, 2014) (Revision Checklist 229), except as listed below; as well as State-initiated changes to the State's previously authorized program. The Rhode Island revisions being authorized in this action include provisions that contain purely Federal functions which are not delegable to States. The non-delegable Federal program areas include import/export requirements reserved as part of the Federal foreign relations function and manifest registry administered solely by the EPA. Rhode Island has appropriately adopted these provisions by leaving the authority with the EPA for implementation and enforcement.

Rhode Island's regulatory references are to Rhode Island Code of Regulations (RICR) Title 250 Department of Environmental Management, Chapter 140 Waste and Materials Management, Subchapter 10 Hazardous Waste, Part 1 Rules and Regulations for Hazardous Waste Management (250-RICR-140-10-1), as amended effective April 22, 2020. Rhode Island's statutory authority for its hazardous waste program is based on the Rhode Island Hazardous Waste Management Act (Rhode Island General Laws Title 23 Health and Safety, Chapter 23-19.1 Hazardous Waste Management). Therefore, we grant Rhode Island final authorization for the following changes that are being recognized as no less stringent than the analogous Federal requirements:

1. Program Revision Changes for Federal Rules

The State of Rhode Island revisions consist of regulations which specifically govern Federal hazardous waste revisions promulgated from July 1, 2008, through June 30, 2013 (RCRA Clusters XIX through XXII), and the Federal final rule published July 31, 2013 (78 FR 46448, effective January 31, 2014) (Revision Checklist 229); except the final rules published October 30, 2008 (73 FR 64668, effective December 29, 2008) (Revision Checklist 219), December 1, 2008 (73 FR 72912, effective December 31, 2008) (Revision Checklist 220), January 8, 2010 (75 FR 1236, effective July 7, 2010) (Revision Checklist 222), and December 20, 2010 (75 FR 79304, effective March 7, 2011) (Revision Checklist 226).

Additionally, Rhode Island is being authorized for the following program areas which are particularly regulated by the State; the regulations for which have been analyzed by the EPA to ensure the Rhode Island regulations are equally or more protective of human health and the environment as the Federal regulations, and are neither less stringent, nor narrower in scope than the Federal program. The EPA has determined that the State's regulations for the listed programs are more protective or stricter than the Federal program; thus, these regulations are within the State's authority to maintain under RCRA section 3009. To determine whether the State regulations are stricter and not less stringent than the Federal regulations, the EPA has compared the State regulations to the Federal regulations, including examining interpretations that have been made of the Federal regulations (available in the administrative record and in RCRA Online). However, in line with the national policy: Determining Equivalency of State RCRA Hazardous Waste Programs, September 7, 2005 (Equivalency Policy), the EPA has not required that the State follow the same identical approach as the Federal regulations. Rather, the EPA has focused, "on whether the state requirements provide [at least] equal environmental results as the Federal counterparts." Id.

(a) Rhode Island has additional, State-specific conditions which wastewater treatment units must meet in order to be exempt from the 40 CFR part 264 standards as allowed by 40 CFR 264.1(g)(6). At 250-RICR-140-10-1.10.2(A)(5), the State allows treatment in an evaporation unit (as defined by the State at 250-RICR-140-10-1.5(A)(30)) under the permit exemption under limited circumstances and only when this does "not allow evaporation of significant amounts of hazardous waste constituents into the air" (250-RICR-140-10-1.7.1(C)(5)(e)(7).

At the Federal level, the wastewater treatment unit (WWTU) exemption has been interpreted to cover many hazardous waste evaporators. Rhode Island is stricter than this Federal approach in that it excludes wastewater evaporation units from being covered under its WWTU exemption. Rather, the State regulates them under its more protective generator treatment in tanks exemption. Furthermore, Rhode Island's generator treatment in tanks exemption is more stringent than the Federal exemption in that it imposes additional requirements designed to effectively regulate evaporators.

However, there may be some evaporators that do not qualify for the WWTU exemption at the Federal level. The EPA has concluded that it should look at the overall RCRA program and assess the effect of the Rhode Island program with respect to evaporators, broadly. In doing so, the EPA has concluded that the Rhode Island program is stricter than any of the Federal requirements with respect to wastewater evaporators. Rhode Island consistently and strictly regulates all generator evaporators by imposing hazardous waste management requirements and comprehensive air emissions regulations, which are administered by the EPA with respect to the requirements of 40 CFR part 265, subparts AA, BB, and CC. This approach is stricter across the board than the Federal approach, and thus should be allowed consistent with the national Equivalency Policy, which emphasizes that States may take different but equally or more protective approaches.

The EPA emphasizes that this decision allows non-permitted evaporation treatment (outside of the WWTU exemption) only in Rhode Island. Such treatment will be allowed only because it has been federally authorized as functionally equivalent, and this Federal authorization is being granted based on the strict requirements adopted by Rhode Island.

(b) Rhode Island requires that in addition to the Federal requirement, treatment in tanks and containers must be carried out in a system where equipment has been designed, engineered, and constructed so as to protect human health and the environment, and to comply with all requirements within OSHA standards.

(c) Rhode Island has adopted additional conditions under which the State regulates shredded circuit boards that are being recycled. At 250-RICR-140-10-1.13 Rhode Island has enacted additional State-specific requirements for Circuit Board Recycling Operations, including additional notification requirements. Typically treated as universal waste in the Federal program, Rhode Island includes these specific items as a type of State-only waste under RCRA. These items may be managed as hazardous waste, thereby making the State requirements broader in scope in this regard and not part of the federally enforceable State hazardous waste requirements.

(d) At 250-RICR-140-10-1.12 Rhode Island's regulations contain Requirements for Community Collection Centers and Paint Collection Centers. The Federal program does not regulate these types of facilities or wastes, so as such and as described with respect to the "broader in scope" policy of EPA, these requirements are being authorized as State-only and broader in scope than the Federal program and are not part of the federally enforceable State hazardous waste requirements. This includes all related State definitions at 250 RICR-140-10-1.5(A) such as "architectural paint" at (A)(5) and "community collection center" at (A)(12).

Finally, there are certain Federal rules within the Rhode Island incorporation by reference of Federal regulations that have been vacated or withdrawn. For completeness, these rule checklists are included below with an explanation as to the rule's status in Rhode Island. These rules are not part of the State's authorized program. These checklists include:

Revision Checklist 216: Exclusion of Oil-Bearing Secondary Materials Processed in a Gasification System to Produce Synthetic Gas (73 FR 57, January 2, 2008). This Revision Checklist 216 was vacated by the U.S. Court of Appeals for the District of Columbia Circuit in 2014, a vacatur that was later codified as Revision Checklist 234, which is not part of the State's current authorization application package.

Revision Checklist 221: Expansion of RCRA Comparable Fuel Exclusion (73 FR 77954, December 19, 2008); and Revision Checklist 224: Withdrawal of the Emission Comparable Fuel Exclusion (75 FR 33712, June 15, 2010). Revision Checklist 221 introduced an expansion of the comparable fuel exclusion which was later withdrawn in its entirety by Revision Checklist 224; thus, it is appropriate to not authorize the State for this pair of Federal final rules which cancel each other out.

Rhode Island's authorized program continues to be equivalent to and no less stringent than the Federal program without having to make any conforming changes pursuant to these rule checklists, as explained above.

2. State-Initiated Changes

Rhode Island has made amendments to its regulations that are not directly related to any of the Federal rules addressed in Item G.1. above. These State-initiated changes are either conforming changes made to existing authorized provisions, or the adoption of provisions that clarify and make the State's regulations internally consistent. For example, after the 2010 authorization, Rhode Island significantly altered the structure and numbering of the State's hazardous waste regulations, replacing the numbering system and making conforming changes to all necessary internal references, which does not affect the authorization of the State's hazardous waste program. The State's regulations, as amended by these provisions, provide authority which remains equivalent to and no less stringent than the Federal laws and regulations. These State-initiated changes are submitted under the requirements of 40 CFR 271.21(a) and include the following provisions from the Rhode Island Code of Regulations (250-RICR-140-10), as amended effective April 22, 2020: 250-RICR-140-10-1..4(A), 1.4(C), 1.5(A)(5), (A)(12), (A)(20), (A)(30), (A)(44), (A)(45), (A)(73).

H. Where are the revised State rules different from the Federal rules?

When revised State rules differ from the Federal rules in the RCRA State authorization process, the EPA determines whether the State rules are equivalent to, more stringent than, or broader in scope than the Federal program. Pursuant to RCRA section 3009, 42 U.S.C. 6929, State programs may contain requirements that are more stringent than the Federal regulations. Such more stringent requirements can be federally authorized and, once authorized, become federally enforceable. Although the statute does not prevent States from adopting regulations that are broader in scope than the Federal program, States cannot receive Federal authorization for such regulations, and they are not federally enforceable.

1. Broader in Scope Provisions

Rhode Island's hazardous waste program contains certain provisions that are broader than the scope of the Federal program. These broader in scope provisions are not part of the program the EPA is proposing to authorize. The EPA cannot enforce requirements that are broader in scope, although compliance with such provisions is required by State law. Newly added broader in scope provisions in Rhode Island's program include:

(a) At 250-RICR-140-10-1.5(A)(82) the State lists additional State-only hazardous wastes that are beyond the Federal definition of hazardous waste found at 40 CFR 261.3 and known as "Rhode Island Wastes." These additional wastes include polychlorinated biphenyls (PCBs) and chemotherapy waste. As part of this authorization the State has added a new subsection at 1.5(A)(82)(a)(3)(DD) to include certain drugs that Rhode Island will classify as "extremely hazardous waste."

(b) Rhode Island excludes from its incorporation by reference several waste items that are excluded from the Federal definition of solid waste at 40 CFR 261.2, thereby regulating these waste items as State-only hazardous wastes. When substances are regulated as hazardous waste by the State, such as those listed at 250-RICR-140-10-1.4(C)(20) and 1.4(C)(22), the State program is broader in scope than the Federal program.

(c) At 250-RICR-140-10-1.4(C)(23) and 1.4(C)(29) Rhode Island regulates manufactured gas plant waste as hazardous waste in certain circumstances, expanding the universe of hazardous waste regulated by the State.

(d) At 250-RICR-140-10-1.12 Rhode Island regulates a category of State-only facilities, "Community Collection Centers and Paint Collection Centers," which is broader in scope than the Federal program, including facility specific limitations such as the exclusion for architectural paint received by Paint Care Centers from specific generators as described at 250-RICR-140-10-1.7.6(B)(4).

2. More Stringent Provisions

Rhode Island's hazardous waste program contains several types of provisions that are more stringent than the Federal RCRA program. More stringent provisions are part of a federally authorized program and are therefore federally enforceable. Under this action, the EPA will authorize every provision in Rhode Island's program revision that is more stringent. Provisions identified in the State's program revision as more stringent are noted in Table 1. These provisions are more stringent for the following reasons:

(a) Rhode Island has several requirements applicable to generators of hazardous waste that are more stringent than the Federal requirements at 40 CFR 262.10, including requirements for the management of household hazardous waste and the State's exclusion of the academic lab rule at 250-RICR-140-10-1.7.1(B)-(E), as well as additional requirements for farmers and laboratories.

(b) The State's application of additional storage and transportation requirements, accumulation time limits, exemptions, and recordkeeping such as those found at 250-RICR-140-10.1.7.1 through 1.7.14 including notification, marking, and manifest requirements for CESQGs result in the State program being more stringent than the Federal program.

(c) At 250-RICR-140-10-1.4(D)(1) Rhode Island limits the onsite storage of manifested waste in containers at a transfer facility to 72 hours before additional regulation applies while the Federal program allows this period to extend up to ten (10) days.

(d) At 250-RICR-140-10-1.8 Rhode Island has State-only transport, storage and handling requirements that impose greater restrictions than those found in the Federal requirements at 40 CFR part 263, subparts B and C.

I. Who handles permits after the authorization takes effect?

Rhode Island will continue to issue permits covering all the provisions for which it is authorized and will administer the permits it issues. The EPA will continue to administer and enforce any RCRA and HSWA permits or portions of permits that the EPA issued prior to the effective date of this authorization in accordance with the signed Memorandum of Agreement, dated September 30, 2021, which is included with this program revision application. Until such time as formal transfer of the EPA permit responsibility to Rhode Island occurs and the EPA terminates its permit, the EPA and Rhode Island agree to coordinate the administration of permits in order to maintain consistency. The EPA will not issue any new permits or new portions of permits for the provisions listed in section G after the effective date of this authorization. The EPA will continue to implement and issue permits for HSWA requirements for which Rhode Island is not yet authorized.

J. How would this action affect Indian Country (18 U.S.C. 115) in Rhode Island?

Rhode Island has not applied for and is not authorized to carry out its hazardous waste program in Indian country within the State, which includes the land of the Narragansett Indian Tribe. Therefore, this action has no effect on Indian country. The EPA retains jurisdiction over Indian country and will continue to implement and administer the RCRA program on these lands.

K. What is codification and will the EPA codify Rhode Island's hazardous waste program as authorized in this final action?

Codification is the process of placing citations and references to the State's statutes and regulations that comprise the State's authorized hazardous waste program into the CFR. The EPA does this by referencing the authorized State rules in 40 CFR part 272. The EPA is not codifying the authorization of Rhode Island's revisions at this time. However, the EPA reserves the ability to amend 40 CFR part 272, subpart OO, for the authorization of Rhode Island's program at a later date.

II. Corrections

Past Rhode Island authorization Federal Register notifications contain typographical errors and omissions for some of the rule checklists/provisions included in the EPA's authorization decision for State program revisions. The EPA is correcting these omissions with this authorization. The provisions in these checklists continue to be part of Rhode Island's authorized program.

A. Corrections to the March 12, 1990 (55 FR 9128) Proposed Authorization Document

There was an error in the citation for Revision Checklist 2 in "Table 1-Provisions Covered by this Program Authorization Revision." The entry should be corrected to read: Permit Rules: Settlement Agreement (48 FR 39611, September 1, 1983) (Revision Checklist 2).

B. Corrections to the March 5, 1992 (57 FR 8089) Immediate Final Rule

The following items were inadvertently omitted from "Table 1-Provisions Covered by this Program Authorization Revision" and should be added to the end of the Table.

1. HSWA Codification Rule: Double Liners (50 FR 28702, July 15, 1985) (Revision Checklist 17H).

2. HSWA Codification Rule: Ground-water Monitoring (50 FR 28702, July 15, 1985) (Revision Checklist 17I).

3. HSWA Codification Rule: Interim Status (50 FR 28702, July 15, 1985) (Revision Checklist 17P).

4. HSWA Codification Rule: Research and Development Permits (50 FR 28702, July 15, 1985) (Revision Checklist 17Q).

C. Corrections to the October 2, 1992 (57 FR 45574) Immediate Final Rule

The following items were inadvertently omitted from "Table 1-Provisions Covered by this Program Authorization Revision" and should be added to the end of the Table.

1. Biennial Report Correction (51 FR 28556, August 8, 1986) (Revision Checklist 30).

2. Closure/Post-closure Care for Interim Status Surface Impoundments (52 FR 8704, March 19, 1987) (Revision Checklist 36).

3. Amendments to Part B Information Requirements for Land Disposal Facilities (52 FR 23447, June 22, 1987, as amended September 9, 1987, at 52 FR 33936) (Revision Checklist 38).

D. Corrections to the August 9, 2002 (67 FR 51768) Immediate Final Rule

The following items were inadvertently omitted from the table of provisions included as part of the authorization and should be added to the end of the Table.

1. Permit Modification for Hazardous Waste Management Facilities (53 FR 37912, September 28, 1988, as amended October 24, 1988, at 53 FR 41649) (Revision Checklist 54).

2. Statistical Methods for Evaluating Groundwater Monitoring Data from Hazardous Waste Facilities (53 FR 39720, October 11, 1988) (Revision Checklist 55).

3. Changes to Interim Status Facilities for Hazardous Waste Management Permits; Modification of Hazardous Waste Management Permits; Procedures for Post-Closure Permitting (54 FR 9596, March 7, 1989) (Revision Checklist 61).

III. Statutory and Executive Order Reviews

The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). This action authorizes State requirements for the purpose of RCRA section 3006 and imposes no additional requirements beyond those imposed by State law. Therefore, this action is not subject to review by OMB. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this action authorizes pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538). For the same reason, this action also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant, and it does not make decisions based on environmental health or safety risks. This action is not subject to Executive Order 13211, "Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use" (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

Under RCRA section 3006(b), the EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for the EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in taking this action, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of this action in accordance with the "Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings" issued under the Executive order. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). "Burden" is defined at 5 CFR 1320.3(b). Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. Because this action authorizes pre-existing State rules which are at least equivalent to, and no less stringent than existing Federal requirements, and imposes no additional requirements beyond those imposed by State law, and there are no anticipated significant adverse human health or environmental effects, this rulemaking is not subject to Executive Order 12898.

[FR Doc. 2024-19036 Filed 8-28-24; 8:45 am]

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